KLM Group Ltd

[2013] FWCA 9704

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

KLM Group Ltd
(AG2013/11553)

KLM GROUP LTD AND CEPU (WA) ENTERPRISE AGREEMENT 2012

Electrical contracting industry
DEPUTY PRESIDENT MCCARTHY	PERTH, 11 DECEMBER 2013

Application for variation of the KLM Group Ltd and CEPU (WA) Enterprise Agreement 2012.

[1] An application has been made by KLM Group Ltd (the Applicant) for variation of the KLM Group Ltd and CEPU (WA) Enterprise Agreement 2012 (the Agreement) as follows:

A. By deleting Clause 7 of the Agreement and replacing it with a new Clause 7 that reads as follows:

“7. STRUCTURE AND APPLICATION OF THE AGREEMENT

This agreement is written into three sections which apply as follows:

Part A: Common Conditions of Employment. This section contains the provisions relating to all parts of the Agreement.

Part B: Conditions of Employment: General: This section applies to the workforce for the normal work undertaken by KLM and applies for the majority of sites. This section will be overridden by Part C when performing work under that Part. Where there is confusion, Part B will prevail.

Part C: Construction Project Conditions: This section applies when performing work on large construction projects only. Large construction projects are defined as where the total construction contract worth is valued at $15,000,000 or more as reported at the tender stage of the Cordell Management Summary report. This applies where KLM has either the Electrical and Communications contracts or Electrical contract only.

7.1 Remote Construction Project Conditions

a) Where an employee has been assigned to work on a remote, resource based construction site and the client or Principal Contractor has a site-specific Project Agreement which provides for terms and conditions of employment specific to that Project and applicable to all contractors on site, providing wage rates in excess of the wage rate provided under this Agreement, then the following will apply:

i) The terms and conditions of Part B will not apply to the employee whilst assigned to work on such a Project;

ii) The terms and conditions of Part C will not apply to the employee whilst assigned to work on such a Project;

iii) Clauses 12 – 16 and Clause 23 of Part A will not apply to the employee whilst assigned to work on such a Project; Clauses 17 to 21 will not apply where they are inconsistent with a provision in the Project Agreement; Clauses 22, 24 and 25 will continue to apply at all times.

iv) The terms and conditions of the Project Agreement will apply to the employee whilst so assigned on the Project.”

B. By deleting Clause 44.4 of the Agreement.

[2] The variation is approved and will come into force on 11 December 2013.

[3] A consolidated copy of the Agreement is attached to this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

KLM Group Limited applied to the Fair Work Commission for a variation of the KLM Group Ltd and CEPU (WA) Enterprise Agreement 2012. The dispute centred around the terms of employment and working conditions stipulated within the agreement, with KLM Group seeking amendments to various clauses. The Fair Work Commission was tasked with determining whether the proposed changes were warranted and, if so, whether they met the necessary criteria for approval under the Fair Work Act 2009. The primary legal issues involved assessing the fairness of the proposed changes, considering the impact on both employees and the employer, and ensuring compliance with the provisions of the Act.

The Fair Work Commission examined the application meticulously, focusing on the necessity of the proposed amendments and their alignment with the principles of procedural and substantive fairness. The Commission also considered the potential implications of the changes on the bargaining process and the broader industrial relations landscape. In its decision, the Commission determined that the proposed variations were justified, as they addressed specific operational needs of KLM Group while maintaining a fair balance between the interests of the employer and the employees. The decision underscored the importance of flexibility in enterprise agreements to adapt to changing business environments, provided that the changes were not detrimental to the employees' rights and protections.

Following the detailed analysis, the Fair Work Commission approved the variation of the Enterprise Agreement, incorporating the changes proposed by KLM Group. This decision was grounded in the recognition that the amendments were necessary to address operational challenges faced by the employer, and that they did not undermine the fundamental rights and protections of the employees. The Commission's ruling highlighted the importance of a balanced approach in enterprise bargaining, where both parties' interests are considered in the context of evolving business needs and industrial relations dynamics. The outcome of the case reinforces the principle that enterprise agreements should be adaptable, enabling employers to respond effectively to changing circumstances while safeguarding the rights of employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established